Our continuing series of quick guides to major employment legislation, puts
key information at your fingertips and brings you up to date with the latest
developments. This week martin Warren, a
partner at Eversheds, examines what effect the provision for compulsory trade
union recognition has had in companies under the Trade Union and Labour
Relations (Consolidation) Act 1992
Since the Government incorporated compulsory trade union recognition provisions
into the Trade Union and Labour Relations (Consolidation) Act 1992 virtually 12
months ago, 77 claims have been lodged. Trends are beginning to emerge from the
way the Central Arbitration Committee is processing and adjudicating claims.
The CAC has to make a number of key decisions once an application is
received:
– Whether the application should be accepted or rejected
– If accepted, what the appropriate bargaining unit should be
– If the bargaining unit is different from that initially proposed by the
trade union, whether or not the application remains valid
– Where trade union membership levels exceed 50 per cent in respect of a
bargaining unit whether, despite that fact, a secret ballot should be ordered.
Favouring recognition
Most of the CAC’s decisions to date have concerned whether or not
applications are acceptable. In practice, most applications are being held to
be acceptable. The principal area of dispute has been in relation to the
requirement for the CAC to be convinced that:
– At least 10 per cent of the employees in the bargaining unit claimed by
the trade union are trade union members, and
– A majority of workers in the claimed unit would be likely to favour
recognition.
Trade unions are winning on this latter point because they are demonstrating
increasing membership levels in the context of a campaign for recognition and
the CAC is then inferring that, even if the membership level is below 50 per
cent, it is likely that a majority would support the trade union’s claim.
Alternatively, trade unions are organising petitions of employees who are
signing to say they desire their chosen trade union to be recognised.
Identical conditions
In dealing with what the appropriate bargaining unit should be, the CAC
appears to be looking in some detail into the terms and conditions of the
employees concerned and any existing employee representative structures.
To date, trade unions are generally winning more cases then they are losing.
Trade unions are generally opting for smaller, focused bargaining units and
where companies are disputing the size of the unit, they are putting forward
arguments for larger, more inclusive units.
Where companies are arguing that shopfloor staff and supervisory/administration
employees should be aggregated, they are losing. (See ISTC v Benteler, GPMU v
Statex and ISTC v Fullerton Computer Industries – TUR 1/4/00, TUR 1/21/00 and
TUR 1/29/00 respectively)
But where a company can argue that employees, even across more than one site
or location, undertake very similar work and are employed on identical terms
and conditions, then they are succeeding. (See ISTC v Hygena, TUR 1/33/00, and
BAJ v Essex Chronicle Series, TUR 1/34/2001.)
Inadmissible application
As indicated above, where the CAC rules against the trade union on the issue
of the bargaining unit, it is required to determine again whether or not the
application is nevertheless valid.
The risk for the trade union is that the application, while initially
admissible, is now ruled to be inadmissible.
This point was highlighted by the ISTC v Hygena case above. Following a
decision that the bargaining unit should comprise employees across six sites
rather than employees at one site as proposed by the ISTC, the CAC decided
there was insufficient evidence that a majority at the wider bargaining unit
would be likely to favour recognition.
On this basis, the ISTC could not proceed with the application.
Finally, there have now been some significant decisions on whether or not a
ballot should be ordered in circumstances where a trade union has membership
levels in excess of 50 per cent in the determined bargaining unit.
In GPMU v Statex Press, TUR 1/21/00, the company argued that a ballot would
be in the interests of good industrial relations.
Trade union membership levels were at 55 per cent. In ISTC v Fullerton
Computer Industries, TUR 1/29/00, the company argued the same point in the
context of trade union membership levels of 51.3 per cent.
Exacerbating tensions
In both cases, the evidence before the CAC was that the industrial relations
climate was fairly tense.
In both cases the CAC decided not to order a ballot because if one was
ordered there would be campaigning, both by the employer and by the trade
union, with the trade union having rights of access to the company’s premises
for the first time.
The CAC concluded that the campaigning process would be likely to exacerbate
tensions in the workplace rather than reduce them and a ballot would not be in the
interests of good industrial relations.
It is likely that the volume of claims will increase over the next 12
months.
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HR professionals and employment lawyers working in this area should pay
close regard to Central Arbitration Committee decisions as they appear on the
CAC’s website.
